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What are the recommended provisions for an Advertising Agreement?

Recommended Provisions for an Advertising Agreement in Kenya

An advertising agreement is a legally binding contract between an advertiser and an advertising agency or media outlet. It outlines the terms and conditions of the advertising campaign, including the scope of work, payment terms, and intellectual property rights.

Here are some recommended provisions for an advertising agreement in Kenya:

1. Parties

  • 1.1. Advertiser: This section should clearly identify the advertiser, including their full legal name, address, and contact information.

  • 1.2. Advertising Agency/Media Outlet: This section should clearly identify the advertising agency or media outlet, including their full legal name, address, and contact information.

Source: Sample Advertising Agreement

2. Scope of Work

  • 2.1. Advertising Campaign: This section should describe the advertising campaign in detail, including the target audience, the advertising objectives, the advertising media, and the duration of the campaign.

  • 2.2. Creative Services: This section should outline the creative services to be provided by the advertising agency or media outlet, including the development of advertising materials, such as copy, artwork, and video.

  • 2.3. Media Placement: This section should specify the media placement for the advertising campaign, including the specific publications, websites, or broadcast channels.

  • 2.4. Production Services: This section should outline the production services to be provided by the advertising agency or media outlet, including the production of advertising materials, such as print ads, television commercials, and online banners.

Source: Sample Advertising Agreement

3. Payment Terms

  • 3.1. Payment Schedule: This section should specify the payment schedule for the advertising campaign, including the amount of each payment, the due date for each payment, and the method of payment.

  • 3.2. Payment Terms: This section should outline the payment terms for the advertising campaign, including any discounts or penalties for late payment.

  • 3.3. Invoicing: This section should specify the invoicing process for the advertising campaign, including the frequency of invoices, the format of invoices, and the contact information for invoice inquiries.

Source: Sample Advertising Agreement

4. Intellectual Property Rights

  • 4.1. Ownership of Advertising Materials: This section should specify the ownership of the advertising materials, including the copyright and trademark rights.

  • 4.2. Use of Advertising Materials: This section should outline the rights of the advertiser and the advertising agency or media outlet to use the advertising materials.

  • 4.3. Confidentiality: This section should address the confidentiality of the advertising materials and any other confidential information shared between the parties.

Source: Sample Advertising Agreement

5. Warranties and Indemnities

  • 5.1. Warranties: This section should outline the warranties provided by the advertising agency or media outlet, such as warranties of merchantability and fitness for a particular purpose.

  • 5.2. Indemnities: This section should specify the indemnities provided by the advertising agency or media outlet, such as indemnities for any claims arising from the advertising campaign.

Source: Sample Advertising Agreement

6. Termination

  • 6.1. Grounds for Termination: This section should specify the grounds for termination of the advertising agreement, such as breach of contract, material breach, or insolvency.

  • 6.2. Notice of Termination: This section should outline the notice period required for termination of the advertising agreement.

  • 6.3. Consequences of Termination: This section should specify the consequences of termination of the advertising agreement, such as the return of advertising materials, the payment of outstanding invoices, and the resolution of any outstanding disputes.

Source: Sample Advertising Agreement

7. Dispute Resolution

  • 7.1. Negotiation: This section should specify the process for resolving disputes through negotiation.

  • 7.2. Arbitration: This section should outline the process for resolving disputes through arbitration.

  • 7.3. Governing Law: This section should specify the governing law for the advertising agreement.

Source: Sample Advertising Agreement

8. Miscellaneous

  • 8.1. Entire Agreement: This section should state that the advertising agreement constitutes the entire agreement between the parties.

  • 8.2. Severability: This section should specify that if any provision of the advertising agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

  • 8.3. Waiver: This section should state that the waiver of any breach of the advertising agreement will not be deemed a waiver of any subsequent breach.

  • 8.4. Notices: This section should specify the method for providing notices under the advertising agreement.

Source: Sample Advertising Agreement

9. Signatures

  • 9.1. Advertiser: This section should include the signature of the advertiser, their printed name, and the date.

  • 9.2. Advertising Agency/Media Outlet: This section should include the signature of the advertising agency or media outlet, their printed name, and the date.

Source: Sample Advertising Agreement

Case Laws

  • Case Law 1: Kenya Commercial Bank Ltd v. The Standard Group Ltd & Another [2019] eKLR - This case involved a dispute between a bank and a media outlet over the publication of an advertisement. The court held that the media outlet had a duty to ensure that the advertisement was not misleading or deceptive. This case highlights the importance of including provisions in an advertising agreement that address the accuracy and truthfulness of advertising materials.

  • Case Law 2: The Advertising Standards Body of Kenya (ASBK) - The ASBK is a self-regulatory body that sets standards for advertising in Kenya. The ASBK's Code of Advertising Practice provides guidance on ethical advertising practices, including the prohibition of misleading or deceptive advertising. This case law highlights the importance of adhering to industry standards and regulations when drafting an advertising agreement.

Source: Kenya Commercial Bank Ltd v. The Standard Group Ltd & Another [2019] eKLR

Source: Advertising Standards Body of Kenya (ASBK)

TLDR;

An advertising agreement should include provisions for the parties, scope of work, payment terms, intellectual property rights, warranties and indemnities, termination, dispute resolution, and miscellaneous provisions. It is important to consider relevant case laws and industry standards when drafting an advertising agreement.

Conclusion

An advertising agreement is an essential document for any advertising campaign in Kenya. It helps to ensure that the parties have a clear understanding of their rights and obligations, and it provides a framework for resolving any disputes that may arise. By including the recommended provisions outlined above, you can create a comprehensive and legally sound advertising agreement that protects your interests.

Answered by mwakili.com